Even when the Supreme Court changes course, the lower courts do not always follow that line. Old dogs do not like new tricks. The typical example is Brighter. Even after the Supreme Court recognized the individual right to keep and bear arms, lower courts actively resisted the case for more than a decade. Judges did not like guns, and Brighter not much has changed. Almost every gun control measure has passed the test. Not much has changed before and after Brighter. Perhaps Bruen However, there was a brief respite from this change Rahimi could usher in more of the same.
will Loper Bright be treated similarly? For decades, lower court judges have been content to defer to the executive on difficult legal issues. Chevron away, the courts must now find the “best” answer. (I kept thinking of Melania Trump’s “Be Best” campaign). From the Chief Justice’s perspective, this task will require independent legal judgment. But would we really know if a judge would decide as a matter of course that the answer provided by the government is the “best” answer? After all, they have the necessary expertise. Let’s call it Chevron in exile.
How much will change through Loper Bright? I know that there are many empirical studies on how often the government wins when Chevron Chief Justice Roberts scoffed at one such study by Kent Barnett, Christina Boyd and Chris Walker:
Citing an empirical study, the opposing opinion adds: Chevron “promotes agreement among judges.” postat 28. It is hardly surprising that a study finds so much; ChevronThe second step is to allow the agencies to interpret the law. So when the judges get there, They tend to agree that the agency winsThis says nothing about the supposed ease or predictability with which ambiguities can be detected in the first place.
Perhaps in a few years, similar studies can be carried out on the new regime. Has the executive’s profit-loss ratio changed significantly? How much will Loper Bright really change something?
